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Date: August 19, 1999
Case No.: 1998-STA-6
In the Matter of
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH
Prosecuting Party
and
JACK M. HAEFLING
Complainant
vs.
UNITED PARCEL SERVICE
Respondent
BEFORE: RUDOLF L. JANSEN
Administrative Law Judge
FINAL ORDER APPROVING SETTLEMENT AND DISMISSING COMPLAINT
This proceeding arises under Section 31105 of the Surface Transportation
Assistance Act (STAA) of 1982 (49 U.S.C. § 31101) and the regulations promulgated
thereunder [29 C.F.R. Part 1978 (1989)]. The parties, on August 11, 1999, filed a Settlement
Agreement in accordance with 29 C.F.R. § 1978.111(d)(2). The Agreement resolves the
controversy arising from the complaint of Jack M. Haefling under the statute. The Settlement
Agreement is signed by the complainant and his counsel, by Respondent's counsel, and also by counsel
for the Prosecuting Party.
[Page 2]
Under the STAA and implementing regulations, a proceeding may be terminated
on the basis of a settlement provided either the Secretary or the Administrative Law Judge approves
the agreement. 49 U.S.C. app. § 2305(c)(2)(A); 29 C.F.R. § 1978.111(d)(2). The
parties must submit for review an entire agreement to which each party has consented. Tankersley
v. Triple Crown Services, Inc. 92-STA-8 (Sec'y Feb. 18, 1993). The agreement must be
reviewed to determine whether the terms are a fair, adequate and reasonable settlement of the
complaint. Macktal v. Secretary of Labor, 923 F.2d 1150 (5th Cir. 1991); Thompson
v. U.S. Department of Labor, 885 F.2d 551 (9th Cir. 1989); Fuchko and Yunker v. Georgia
Power Co., Case Nos. 89-ERA-9, 89-ERA-10, Sec'y Ord. Mar. 23, 1989, slip op. at 1-2.
This Order approving the settlement is final since all parties have joined in the Agreement.
Swischer v. Gerber Childrenswear, Inc., 93-STA-1 (Sec'y Jan. 4, 1993).
I find the overall settlement terms to be reasonable but some clarification is
necessary. The Agreement contains a strict confidentiality provision limiting all disclosures excepting
under certain stated circumstances. The Agreement contains a provision that it does not preclude the
Complainant from cooperating with any investigation by a federal, state or local administrative agency.
Paragraph 5 of the Agreement provides that Mr. Haefling is not to disclose the existence of the
Agreement nor the terms of the Agreement with any third party. It has been held in a number of cases
with respect to confidentiality provisions in Settlement Agreements that the Freedom of Information
Act, 5 U.S.C. § 552 (1988) (FOIA) requires federal agencies to disclose requested documents
unless they are exempt from disclosure. Faust v. Chemical Leaman Tank Lines, Inc., Case
Nos. 92-SWD-2 and 93-STA-15, ARB Final Order Approving Settlement and Dismissing Complaint,
March 31, 1998. The records in this case are agency records which must be made available for public
inspection and copying under the Freedom of Information Act.
The Agreement reveals that it may encompass the settlement of matters involving
laws other than the STAA. One of the preliminary paragraphs makes reference to a settlement of the
matter pending before the Department of Labor and "all other claims and disputes"
between Complainant and the Respondent. As was stated in Poulos v. Ambassador Fuel Oil Co.,
Inc., Case No. 86-CAA-1, Sec. Order, (Nov. 2, 1987):
[The Secretary's] authority over the settlement agreement is limited to such statutes as
are within [the Secretary's] jurisdiction and is defined by the applicable statute.
See Aurich v. Consolidated Edison Company of New York, Inc., Case No.
[86-]CAA-2, Secretary's Order Approving Settlement, issued July 29, 1987;
Chase v. Buncombe County, N.C., Case No. 85-SWD-4, Secretary's
Order on Remand, issued November 3, 1986.
I have therefore limited my review of this Agreement to determining whether the terms thereof are a
fair, adequate and reasonable settlement of Mr. Haefling's allegation that Respondent had violated the
STAA.
[Page 3]
The Agreement also notes at Paragraph 7 that it is governed and interpreted in
accordance with the laws of the state of Ohio. That provision is interpreted as not limiting the authority
of the Secretary or any U.S. District Court to seek or grant appropriate relief under any applicable
federal whistleblower statute or regulation. Phillips v. Citizens Assoc. for Sound Energy,
Case No. 91-ERA-25, Sec. Final Order of Dismissal (Nov. 4, 1991).
As so construed, I find the terms of the Agreement to be fair, adequate and
reasonable, and therefore approve it. Accordingly, the complaint filed by Jack M. Haefling is hereby
dismissed with prejudice.